Top court quashes convictions for ex-alliance trio

The Court of Final Appeal on Thursday overturned the convictions and sentences of three former members of the now-disbanded Hong Kong Alliance in Support of Patriotic Democratic Movements of China for refusing to submit information to national security police in 2021.

The trio -- former vice-chairwoman of the dissolved alliance Tonyee Chow Hang-tung and former standing committee members Tang Ngok-kwan and Tsui Hon-kwong -- were sentenced to four and a half months in prison in March 2023, which they already served.

Five Court of Final Appeal judges -- Chief Justice Andrew Cheung Kui-nung, permanent judges Roberto Ribeiro, Joseph Paul Fok and Johnson Lam Man-hon, as well as non-permanent judge Patrick Chan Siu-oi, unanimously ruled that the prosecution failed to prove the alliance was in fact a “foreign agent”, a necessary element of the offense, and merely reasonably believing so is not enough.

"The courts below fell into error in holding that it was sufficient merely for the Commissioner of Police to assert that he had reasonable grounds to believe that HKA was a foreign agent," the judges said in a written judgment.

The judges ruled that the police could request documents that existed before the enactment of the national security law on June 30, 2020.

As long as the court was satisfied that the police had reasonable grounds to believe the information sought was necessary for the prevention and investigation of national security offenses, that information would have to be provided regardless of when it came into existence, they said.

The judges also said the prosecution used heavily redacted investigation report and a recommendation to the police commissioner as bases to charge the trio, but criticized such an act "ill-conceived and self-defeating" as the prosecution removed the only material relied upon for establishing the alliance were foreign agents from evidence.

"The prosecution had the burden of proving that HKA was in fact a 'foreign agent' as an element of that offence. By redacting the only potential evidential basis for establishing such facts, the prosecution disabled itself from proving its case," they said.

"Moreover, non-disclosure of the redacted facts in any event deprived the appellants of a fair trial so that their convictions involved a miscarriage of justice and would in any event not have been permitted to stand."

In response to the Court of Final Appeal's ruling regarding the Alliance's refusal to provide information, a government spokesman stated that the government is currently reviewing the judgment and the associated legal principles.

The government has expressed its commitment to enhancing its legal framework and enforcement mechanisms to effectively address threats to national security.

The spokesman further noted that this ongoing effort is in alignment with the 5.28 Decision and the Hong Kong National Security Law. This ensures not only robust security measures but also the protection of legal rights, including guarantees of a fair trial, for all residents under the Basic Law.

Safeguarding national security remains a paramount and continuous priority for the government, the spokesman emphasized.

(Ayra Wang)

(Updated at 8.13pm)